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P L D 2015 Lahore 146 Before Shujaat Ali Khan, J FLYING

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P L D 2015 Lahore 146 Before Shujaat Ali Khan, J FLYING P L D 2015 Lahore 146 Before Shujaat Ali Khan, J FLYING CEMENT CO. LTD. and others---Petitioners Versus GOVERNMENT OF PAKISTAN through Secretary, Ministry of Water and Power and others--- Respondents Writ Petition No.24076 of 2013, decided on 5th November, 2014. (a) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)--- ----Ss. 31(4) & (5)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability--- Equalization surcharge on electricity, levy of---Federal Government imposed equalization surcharge on electricity vide a notification, but subsequently said notification was withdrawn---Contention of Government that after withdrawal of the notification present constitutional petition became infructuous---Validity--- Petitioners had not only challenged the imposition of equalization surcharge in the present petition but also prayed for refund of the amount already deducted on that account---Constitutional petition was held to be maintainable accordingly. (b) Constitution of Pakistan--- ----Art. 199---Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997), S. 31---Constitutional jurisdiction of the High Court---Scope---Electricity/energy---Production, supply and tariff of electricity---Interest of consumers, protection of---High Court, being custodian of the fundamental rights, could take judicial notice in order to have continuous supply of energy for present and future domestic and commercial needs in addition to maintaining the present sources of energy along with expansion of new sources of energy---Government and National Electric Power Regulatory Authority (NEPRA) while imposing levies and fixing rates of electricity, should strike a balance between the financial status of citizens of the country and the extent of national requirement for energy on the one hand and available resources for electricity on the other---Heavy duty laid upon the public functionaries, the executive as well as judiciary to see that a balance was struck in such a manner that the system flourished and continued progressing on the one hand and the interest of customers/citizens was ensured on the other. (c) Words and phrases--- ---"Tariff"---Meaning. K.J. Aiyar Judicial Dictionary, 16h Edn. 2014; Wharton’s Law Lexicon, 14th Edn.; Black’s Law Dictionary, 8th Edn.; Advanced Law Lexicon by P Ramanatha Aiyar’s 4th Edn., Vols. 1 & 4; The Chambers Dictionary 12th Edn.; Halsbury’s Laws of India, Vol. 42 and Major Law Lexicon, Vol. VI ref. (d) Words and phrases--- ----"Rate"---Meaning. K.J. Aiyar Judicial Dictionary, 16h Edn. 2014; Wharton’s Law Lexicon, 14th Edn.; Black’s Law Dictionary, 9th Edn.; Encyclopaedic Law Dictionary (Legal and Commercial) by Dr. A.R. Biswas and The Major Law Lexicon, by P Ramanatha Aiyar’s 4th Edn. ref. (e) Words and phrases--- ----"Charge"---Meaning. Wharton’s Law Lexicon, 14th Edn. and Advanced Law Lexicon by P Ramanatha Aiyar’s 4th Edn., Vols. 1 and 4 ref. (f) Words and phrases--- ----"Surcharge"---Meaning. Black’s Law Dictionary 9th Edn.; Aiyer’s Judicial Dictionary, 10th Edn.; Ballantine’s Law Dictionary, 3rd Edn. and Black’s Law Dictionary, 4th Edn. ref. (g) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)--- ----S.31---"Surcharge"---"Tariff", "rate" and "charge"---Distinction---"Surcharge" was entirely different from a "tariff", "rate" or "charge"---Surcharge meant something chargeable over and above the original levy in whatever shape it may be---Surcharge was neither an independent levy nor a tax. Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 ref. (h) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)--- ----S. 31(5)---Equalization surcharge on electricity, imposition of---Federal Government empowered to impose surcharge on electricity---Government enjoyed exclusive power to impose surcharge on electricity against a distribution company---In respect of 'tariff', 'charge' or 'rate' , the Government was bound to notify tariff as determined by the National Electric Power Regulatory Authority (NEPRA) but in case of imposition of surcharge in terms of S. 31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, the Government enjoyed exclusive powers---Equalization Surcharge could not be considered as independent tax or levy and Government enjoyed power to impose the same. Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 ref. (i) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)--- ----Ss. 3, 7(3)(a) & 31(5)---National Power Tariff and Subsidy Policy Guidelines, 2014---Quantum of surcharge on electricity, determination of---Outside the domain of National Electric Power Regulatory Authority (NEPRA)---Under the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, NEPRA was not given the authority to determine the quantum of surcharge---Government was not bound to refer the matter of imposition of surcharge to NEPRA prior to its imposition; however, it was optional for the Government to refer the matter of surcharge to NEPRA prior to its imposition or to impose the same directly while exercising powers as contemplated under S.31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997. (j) Interpretation of statutes--- ----Provision of law---Ordinary meaning---While interpreting any provision of law, the ordinary meaning of a word used therein should be followed until and unless the context provided otherwise. (k) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)--- ----Ss. 31(4) & (5)---Constitution of Pakistan, Art. 199---Constitutional petition---Surcharge on electricity--- Surcharge imposed through a notification---Notification, error in ---Surcharge was issued through a notification wherein it was incorrectly mentioned that same was issued under S.31(4) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, whereas the correct provision for such purpose was S.31(5) of the said Act---Effect---Nomenclature of surcharge had least relevance rather the purpose and background of its imposition were pivotal---Omission to mention the relevant provision of law in a notification or wrong mentioning thereof did not make any difference especially when the context and language of the document vividly encompassed the purpose and legal backing thereof---Constitutional petition was dismissed accordingly. Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others 2002 SCMR 312 and Qurban v. Senior Member, Board of Revenue Sindh 2000 CLC 1083 ref. (l) Notification--- ----Omission to mention the relevant provision of law in a notification or wrong mentioning thereof did not make any difference especially when the context and language of the document vividly encompassed the purpose and legal backing thereof. (m) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)--- ----S. 31(5)---Constitution of Pakistan, Arts. 73 & 199---Constitutional petition---Equalization surcharge on electricity, levy of---Constitutionality---Contention of petitioners that equalization surcharge was imposed by the Federal Government without approval by the National Assembly and Senate, therefore the same was unconstitutional---Validity---Section 31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, under which the equalization surcharge was imposed, was incorporated in the said Act through Finance Act, 2008---Said section still held the field and till the time the same was declared ultra vires by a competent forum, any action taken thereunder could not be dubbed as unconstitutional--- Constitutional petition was dismissed accordingly. (n) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)--- ----S. 31(5)---Constitution of Pakistan, Arts. 154(1) & 199 & Fourth Sched. Part II, Entry No.4---Constitutional petition---Equalization surcharge on electricity, levy of---Council of Common Interest---Scope---Federal Government did not consult Council of Common Interest before imposing surcharge on electricity---Legality--- Council of Common Interest could form policies regarding electricity in respect of new projects or for resolution of a dispute arising between two federating units but its scope could not be lowered down to determine surcharge especially when matters regarding generation, transmission and distribution were being controlled by National Electric Power Regulatory Authority (NEPRA)---No illegality had been committed by the Government while imposing surcharge without intervention of Council of Common Interest---No enactment could be declared ultra vires just for the reason that the same was promulgated without intervention of the Council of Common Interest provided the same otherwise stood justified in the peculiar state of affairs--- Constitutional petition was disposed of accordingly. Shaikh Nadeem Younas, Chief Executive, Noble Textile Mills Pattoki District Kasur v. WAPDA and 4 others 1996 CLC 1090 ref. (o) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)--- ----S. 31(5)---Constitution of Pakistan, Arts. 157 & 199 & Fourth Sched. Part II, Entry No.4---Constitutional petition---Equalization surcharge on electricity---Federal and Provincial Governments
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